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It's H-1B Season—Are You Ready?‎

January 20, 2015

Overview

April 1, 2015, is the beginning of the application period for the Fiscal Year 2016 (FY2016) H-1B program. With the economy continuing to rebound and strong hiring in the tech sector in particular, demand for the H-1B program is growing. A record number of new applications will most likely be filed this year, resulting again in a visa lottery. Based on last year's numbers, at least half of all new H-1B applications filed under this year's program will be rejected due to over demand. Further, as in years past, applications that are not received within the first five days of the application period will be rejected. Employers seeking to petition for new H-1B workers should begin preparing their applications now to have them ready for submission on April 1. Is your company ready

The H-1B visa is the most commonly used immigration solution for companies seeking to hire foreign nationals for professional and specialty occupations. Unfortunately, due to an arbitrary cap imposed by Congress on the number of new H-1B visas available every year, demand greatly exceeds supply. Congress only makes 65,000 new H-1B visas available per year, along with another 20,000 reserved for holders of U.S. earned master's degrees. Last year over 172,500 new H-1B applications were filed within the first five days of the application period against the 85,000 new visas available. For the first time ever, all 85,000 new H-1B visas, including the 20,000 reserved for U.S. master's degree holders, were used up during the first week of the application period. By April 7, 2014, U.S. Citizenship and Immigration Service (USCIS) announced that it had received more than enough new applications and closed the application window for both the standard and the master's degree programs. It then conducted a random lottery to select the applications it would adjudicate. Applications that were not selected in last year's lottery (approximately half of all applications submitted) were rejected and returned to the petitioning employer.

Employers are missing opportunities as demand for the H-1B program is growing:

Demand for this year's program is expected to be as high or higher than last year due to the strengthening economy and hiring. It is anticipated that all 85,000 new H-1B visas available for FY2016 will be spoken for by April 5, 2015. As a preliminary matter, employers are required to submit and obtain certification of a Labor Condition Application (LCA) with the U.S. Department of Labor before submitting the H-1B petition to USCIS. That process alone can take weeks to complete and should be started as early as possible to avoid critical delays. Because there are only a limited number of new H-1B visas available and the application window will again close quickly this year, we advise employers to have their H-1B petitions prepared and ready to file on the first day of the application period: April 1, 2015.

Importantly, the April 1 deadline only applies to new applications filed for employees who have not held H-1B status within the past six years. Other exemptions to the April 1 deadline include applications to extend H-1B status for existing H-1B workers and most applications for workers to change H-1B employers. Also, H-1B applications filed by higher education institutions and related non-profits, non-profit research organizations and governmental research organizations may be exempt from the annual cap and April 1 filing deadline.

Schwabe has a robust immigration practice. We handle H-1B visa applications on a daily basis and are ready to serve your needs. For more information about the H-1B program or alternative immigration solutions for your company, please contact Schwabe's immigration attorney Bradley D. Maier for more information. Brad can be reached at 503-796-2440 or bmaier@schwabe.com.